In re Boyer's Guardianship
| Decision Date | 11 February 1931 |
| Docket Number | 14,255 |
| Parties | IN RE BOYER'S GUARDIANSHIP. RITTENOUR v. HESS |
| Court | Indiana Appellate Court |
Rehearing denied March 29, 1931.
Transfer denied February 24, 1933.
From Tippecanoe Circuit Court; Joseph A. Andrew, Judge.
Proceeding in the nature of a review of a judgment removing Rosa C Rittenour as guardian of Hattie E. Boyer, a person of unsound mind and appointing George Hess in her place. From a judgment denying any relief, the plaintiff, Rosa C. Rittenour appealed.
Affirmed.
Berry & Nolan and Victor H. Ringer, for appellant.
McAdams & Schultz and Mehaffey & Haupt, for appellee.
This action is, in substance, a complaint for review proceedings and judgment and was brought by the appellant in the Tippecanoe Circuit Court to set aside a finding and judgment of that court removing the appellant as guardian of Hattie E. Boyer, a person of unsound mind.
A motion for a new trial was filed on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law. The court overruled said motion and the action of the court in that behalf is assigned as error in this appeal. On August 15, 1927, the appellant was directed by the court to file a report in said guardianship; on the 24th day of said month, accompanied by her attorney, she filed and presented to the judge of said court her current report in compliance with the order of the court. The court, upon consideration of the report, as shown, found that she had used $ 5,115 of her ward's money and had given notes therefor to herself as guardian, and further that she had converted $ 1,110 of her ward's funds to her own use, which amount she asked credit for in her report for services for two years. The court further found that she had not managed the estate for the best interests of her ward and that she was not a suitable person to be entrusted with the custody and management of the ward's estate. He then made and entered an order and decree whereby she was removed from her trust.
After such removal the guardianship was transferred to the Warren Circuit Court, where appellee, Hess, was appointed guardian. Rosa C. Rittenour appealed from the order of the Warren Circuit Court, which appointed George Hess as guardian and directed her (Rosa C. Rittenour) to turn over to him certain property. The Supreme Court, in affirming that judgment, held that the question of whether the judgment of the Tippecanoe Circuit Court was correct or erroneous was not before it for decision, the court saying, "The appellant had the right to appeal from such order or judgment, but did not do so and she cannot have a review . . . from the same by a petition filed in the Warren circuit court." Ritenour v. Hess (1929), 201 Ind. 327, 166 N.E. 657, 658. The appellant therefore brought this action in the Tippecanoe circuit court to set aside the finding and judgment of that court removing appellant as guardian and the court found against her.
This proceeding is in the nature of a review of a judgment under Burns 1926, Sec. 669 and 670, under which section any person who is a party to any judgment may file in the court where such judgment is rendered a complaint for review of the proceedings and judgment--for any error of law appearing in the proceedings and judgment within one year after the rendition of the judgment. The review of a judgment for error of law is a substitute for appeal and will only lie when an appeal might be taken. Clark v. Hillis (1899), 134 Ind. 421, 34 N.E. 13; American Insurance Co. v. Gibson (1885), 104 Ind. 336, 342, 3 N.E. 892.
The question arises in this case whether the appellant could have appealed when the court entered a judgment removing her and was it her only remedy? The case of Stayner v. Joice (1882), 82 Ind. 35, is in point. The question presented was whether the finding of the court was contrary to law. The case was prepared for an appeal but instead of filing a transcript in the Supreme Court, the appellant commenced a suit in the trial court to review the judgment and appealed in the latter proceeding as has been done in the case at bar. The court held in that case that the proceedings were proper and reversed the court below on a question of law. Where the time for appeal has expired before an application for review is made, there can be no appeal from a judgment on the petition for review. Klebar v. Corydon (1881), 80 Ind. 95. But in the instant case the complaint was filed in time and no appeal was taken from the original judgment.
There is no controversy about the facts stated by the court.
The appellee contends that she cannot be removed without notice in compliance with the statute regulating the removal of guardians as is provided in Burns 1926, Sec. 3411 (Acts 1881 Special Session, page 526), which section is an amendment of R. S. 1852, page 321, being, "An act touching the relation of guardian and ward." Another act, the act of 1852, page 333, is an act defining who are persons of unsound mind and providing for the appointment of guardian, defining their powers and duties. In this act concerning persons of unsound mind, we find the provisions substantially as are found in Burns 1926, Sec. 3430, to-wit "The same duties are required of and the same powers granted to guardians of persons of unsound mind as...
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